In the wake of two newly publishedorders from the Foreign Intelligence Surveillance Court (FISC) by The Guardian, two American legislators have introduced a bill that would require the government to declassify FISC opinions that describe how the secret court has interpreted Section 215 of the PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Those two parts of federal law are the official legal justification as to why the government has the authority to engage in programs like the one the National Security Agency (NSA) has with Verizon (and presumably other telecom providers), as well as other related covert digital surveillance often conducted by the spy agency. The new bill in the house complements a similar bill introduced in the Senate last week.

"In order to have an informed public debate on the merits of these programs, it is important for the American people to know how such programs have been authorized, their limits and their scope," said Rep. Adam Schiff (D-CA) in a statement.

"Particularly now that the existence of these programs has been acknowledged, I believe there is much more that can be shared with the public about their legal basis," Schiff said. "It is my hope that this legislation will increase transparency and inform the national debate about the surveillance authorities provided to the Intelligence Community. I also believe that requiring additional disclosure would provide another valuable check on any potential expansion of surveillance under these authorities, whether by this or any future Administration.”

No one argues against the government at FISC

Established under the Foreign Intelligence Surveillance Act of 1978, the court’s mandate is to approve special surveillance warrants (FISA warrants) against suspected foreign agents to be used by American federal agencies, typically the NSA or the FBI. One of eleven judges who are tapped from existing posts in the federal circuit can then grant that warrant’s approval. In the court’s history, warrants (and related orders) are approved more than 99 percent of the time. The court’s publicly accessible docket is pretty short—in fact, the website didn't even exist until recently.

“I think one has to be disturbed to learn as we recently have that more than 1,800 applications and [around] more than 1,800 approvals have been made by the court,” Gary Hart, a former Colorado senator who sat on the Church Committee, told Ars. That select senatorial committee was created in the 1970s, and its recommendations paved the way for FISA and FISC.

“I would be a little more comfortable if there were more rejections,” he said.

“The glass half-full is that properly trained and qualified judges are hearing persuasive cases. But as a lawyer, this is not a typical judicial proceeding that we're familiar with, because there's no other side. Unlike virtually everything else [in the legal system,] it's not adversarial. The judge hears [the government’s case,] but there's nobody else to argue the other side. If you're a constitutionalist as I am, that's disturbing.”

There can be no such thing as secret court opinions in the American democratic system. They aren't legal, no matter what the current crop of judges and politicians are telling us. It defeats the checks and balances between the three branches.

All security comes at a cost, and like most such things, there's a diminishing return where the costs rise faster than the benefits. It's not worth selling a nation's soul in pursuit of Obama's "100% security," because you won't get it. You'll just choose a world where innocent citizens are afraid of their state instead of afraid of some nebulous terrorist threat.

I think the problem is that the people who started these programs, and the judges on these courts, are obviously not constitutionalists.

Oh, I am not entirely sure about that. I think you would find there are plenty of arguments on Constitutional grounds for many things. If nothing else the Executive has WIDE latitude in the realm of exigency. In the final analysis no bounds of authority can exist for the Executive in the face of an existential threat. The government must exist before it can serve its function or honor its commitments. Once you get to that level in the debate its all about personal obligation. Should I uphold a government at all, which is a personal decision, even if in the case of say Mr Obama it carries more significance than it does for you or I.

All security comes at a cost, and like most such things, there's a diminishing return where the costs rise faster than the benefits. It's not worth selling a nation's soul in pursuit of Obama's "100% security," because you won't get it. You'll just choose a world where innocent citizens are afraid of their state instead of afraid of some nebulous terrorist threat.

Who's claiming that Obama wants 100% security? If that was the case there are far more invasive measures that could be taken but aren't. Up til now the terrorist attacks on this country have been small, bordering on a nuance. As bad as 9/11 was what would have happened if they crashed one of those planes into an East cost nuclear facility? Or targeted one of our larger power generation stations. Remember the NE blackout of 2003? Hitting the right location or locations could put people without power for months....now imagine a NY winter. Obama isn't looking for 100% security. He's looking to keep any big event from happening. Something this country takes for granted. We go about our day claiming freedom before safety. There is a lot of talk on that topic. I'm willing to wager you've never experienced a day in your life (Nor have I.) of true hardship that could result in your death. See there is a lot of talk, but I'm willing to bet if something major did happen you freedom lovers, which admittedly I love freedom but I don't beat my chest about it, would be the first to crucify X President for not doing more. X= Whatever president is in office at the time.

I think the problem is that the people who started these programs, and the judges on these courts, are obviously not constitutionalists.

Oh, I am not entirely sure about that. I think you would find there are plenty of arguments on Constitutional grounds for many things. If nothing else the Executive has WIDE latitude in the realm of exigency. In the final analysis no bounds of authority can exist for the Executive in the face of an existential threat. The government must exist before it can serve its function or honor its commitments. Once you get to that level in the debate its all about personal obligation. Should I uphold a government at all, which is a personal decision, even if in the case of say Mr Obama it carries more significance than it does for you or I.

The idea of passive exigency is an oxymoron. You can't monitor all communications 24/7/365 and say that it is due to exigent circumstance. Exigency, by definition, expires.

You also can't do it while paying any respect to the Bill of Rights, particularly the 4th amendment. You certainly can't do it and say you are within the bounds of constitutional restriction.

What's the point of this law anyhow? The only thing that will happen is the FISA court or whoever/whatever else will make a statement saying "We acknowledge the law was passed and we are under no obligation to follow it due to national security" BS.

Good. The idea that there can be secret legal opinions is wrong. We classify things way too much.

For instance, let's say we agreed that broad-based network traffic analysis was okay and a good idea. Does the fact that it exists need to be secret for it to work? I'd argue no. Certain operational details about how complete it was, for instance, I would consider valid secrets. But the fact that it existed and the argued legal basis that would allow it should be public, and publicly debated.

What's the point of this law anyhow? The only thing that will happen is the FISA court or whoever/whatever else will make a statement saying "We acknowledge the law was passed and we are under no obligation to follow it due to national security" BS.

Representatives adhere to the Constitution or they don't. There is little if any allowance for a squishy middle ground. The price of freedom is eternal vigilance and if the American people are not vigilant, freedom disappears.

All security comes at a cost, and like most such things, there's a diminishing return where the costs rise faster than the benefits. It's not worth selling a nation's soul in pursuit of Obama's "100% security," because you won't get it. You'll just choose a world where innocent citizens are afraid of their state instead of afraid of some nebulous terrorist threat.

Who's claiming that Obama wants 100% security? If that was the case there are far more invasive measures that could be taken but aren't. Up til now the terrorist attacks on this country have been small, bordering on a nuance. As bad as 9/11 was what would have happened if they crashed one of those planes into an East cost nuclear facility? Or targeted one of our larger power generation stations. Remember the NE blackout of 2003? Hitting the right location or locations could put people without power for months....now imagine a NY winter. Obama isn't looking for 100% security. He's looking to keep any big event from happening. Something this country takes for granted. We go about our day claiming freedom before safety. There is a lot of talk on that topic. I'm willing to wager you've never experienced a day in your life (Nor have I.) of true hardship that could result in your death. See there is a lot of talk, but I'm willing to bet if something major did happen you freedom lovers, which admittedly I love freedom but I don't beat my chest about it, would be the first to crucify X President for not doing more. X= Whatever president is in office at the time.

Being proactive about identifying and neutralizing terrorist threats is one thing, aiming that apparatus at the American people is entirely another. There is no reason that the NSA has to conduct such a massive trawl, only to ferret out a few potentially useful tidbits. It is both unconstitutional and an utter waste of a massive amount of resources.

Add to the fact that this is all being done behind an incredibly thick veil of secrecy, and we're finding it nearly impossible to have a reasoned debate about the situation. That's the kicker, because you are right, we often do take our rights and freedoms for granted. In order for us to appreciate them, we have to fight for them, and that's what this is. People are rightly concerned about the actions of their government and they are exercising their rights to demand answers and an open discussion.

And, for the record, something major did happen (9/11), and people still spoke out against the PATRIOT ACT. Where we are now is something that was forewarned.

Police asking a local judge for a warrant to do things like searching someone's home or wiretapping is also not adversarial, and you could reasonably argue that a lot of what the FISC does is issue warrants for the NSA to perform similar activities.

I think that having the FISC having to approve warrants for the NSA to perform these options is better than the NSA having the power to do it without warrants. It's also reasonable that the decisions and warrants are kept secret until the operations are finished.

The problem is two-fold:1) What is being allowed is way too general and wide2) They don't release the decisions and warrant information after the operations are done, claiming "national security" so the public has no oversight.

If this worked like normal magistrate warrants, where they were very specific and information was available after the operation was done, it wouldn't be so bad.

All security comes at a cost, and like most such things, there's a diminishing return where the costs rise faster than the benefits. It's not worth selling a nation's soul in pursuit of Obama's "100% security," because you won't get it. You'll just choose a world where innocent citizens are afraid of their state instead of afraid of some nebulous terrorist threat.

Who's claiming that Obama wants 100% security? If that was the case there are far more invasive measures that could be taken but aren't. Up til now the terrorist attacks on this country have been small, bordering on a nuance. As bad as 9/11 was what would have happened if they crashed one of those planes into an East cost nuclear facility? Or targeted one of our larger power generation stations. Remember the NE blackout of 2003? Hitting the right location or locations could put people without power for months....now imagine a NY winter. Obama isn't looking for 100% security. He's looking to keep any big event from happening. Something this country takes for granted. We go about our day claiming freedom before safety. There is a lot of talk on that topic. I'm willing to wager you've never experienced a day in your life (Nor have I.) of true hardship that could result in your death. See there is a lot of talk, but I'm willing to bet if something major did happen you freedom lovers, which admittedly I love freedom but I don't beat my chest about it, would be the first to crucify X President for not doing more. X= Whatever president is in office at the time.

Okay, say it isn't 100% security. What is the marginal life expectancy of an American citizen because of these measures? Despite the doom-and-gloom of your post, I'd wager it's on the order of seconds. At that point, I think the favorable trade-off is to preserve our civil liberties.

Also, I would refrain from putting words in people's mouths. I would no more blame Obama when a terrorist attack occurs than I would blame Clinton for the Oklahoma City Bombing.

Well, the other side of the court granting basically everything put before it could be that the people submitting the requests were simply doing a great job at pre-filtering the requests that were iffy.

Now I personally don't think this was the case the entire time, but it may be responsible for at least some of it's history where it seems to have just allowed everything through.

So looking into the future, we can have unchecked surveillance: the panopticon. Nothing moves without something seeing and recording it. Privacy is meaningless and this makes a police state or other authoritarian regime simple to implement. It may be possible to change our concept of privacy to include automated surveillance as ok as long as uncorking recorded data requires specific warrants and fishing is disallowed (ie. what happened to Petraeus can simply not be allowed to happen).

On the other hand, we can try to fight these technologies. However it is hard to avoid pervasive surveillance. For instance Microsoft worked on using WiFi to do the body sensing back when they were researching Kinect (another company is trying to commercialize it). Right there is the potential (with more development) to watch everyone in a building using just the WiFi. Over time, more and more such intrusive tech becomes possible. We can say we want privacy, but just as Crypto Anarchists conceal their communications, some kind of Surveillance Anarchist could deploy cheap surveillance.

I am not sure what kind of privacy can realistically be achieved. I sure don't want to be ticketed by a drone. I am OK with the NSA doing whatever it wants as long as it only actually acts on terrorism and national security / defense related matters. No data should leave it unless its for acting on actionable intel.

I am ok with secret courts for this. Acting as if you could gather intelligence while making all such activities public is nonsense. Instead of demanding disclosure, just demand the abolishment of the NSA instead, it is the same thing.

I think the problem is that the people who started these programs, and the judges on these courts, are obviously not constitutionalists.

Oh, I am not entirely sure about that. I think you would find there are plenty of arguments on Constitutional grounds for many things. If nothing else the Executive has WIDE latitude in the realm of exigency. In the final analysis no bounds of authority can exist for the Executive in the face of an existential threat. The government must exist before it can serve its function or honor its commitments. Once you get to that level in the debate its all about personal obligation. Should I uphold a government at all, which is a personal decision, even if in the case of say Mr Obama it carries more significance than it does for you or I.

The idea of passive exigency is an oxymoron. You can't monitor all communications 24/7/365 and say that it is due to exigent circumstance. Exigency, by definition, expires.

You also can't do it while paying any respect to the Bill of Rights, particularly the 4th amendment. You certainly can't do it and say you are within the bounds of constitutional restriction.

While I don't have any problems with what you're saying the mere fact that isn't the ONLY credible interpretation and that the Executive has to actually deal with the real world and how it actually works and not with the hypothetical logical world-construct of the law and the Constitution means that the debate has to extend beyond what is simply Constitutional in a basic sense and on to definitions which actually work in the real world. That still leaves plenty to debate, and doesn't necessarily invalidate your points. We are just having a bit of a different level of discussion.

I think the problem is that the people who started these programs, and the judges on these courts, are obviously not constitutionalists.

Oh, I am not entirely sure about that. I think you would find there are plenty of arguments on Constitutional grounds for many things. If nothing else the Executive has WIDE latitude in the realm of exigency. In the final analysis no bounds of authority can exist for the Executive in the face of an existential threat. The government must exist before it can serve its function or honor its commitments. Once you get to that level in the debate its all about personal obligation. Should I uphold a government at all, which is a personal decision, even if in the case of say Mr Obama it carries more significance than it does for you or I.

The idea of passive exigency is an oxymoron. You can't monitor all communications 24/7/365 and say that it is due to exigent circumstance. Exigency, by definition, expires.

You also can't do it while paying any respect to the Bill of Rights, particularly the 4th amendment. You certainly can't do it and say you are within the bounds of constitutional restriction.

While I don't have any problems with what you're saying the mere fact that isn't the ONLY credible interpretation and that the Executive has to actually deal with the real world and how it actually works and not with the hypothetical logical world-construct of the law and the Constitution means that the debate has to extend beyond what is simply Constitutional in a basic sense and on to definitions which actually work in the real world. That still leaves plenty to debate, and doesn't necessarily invalidate your points. We are just having a bit of a different level of discussion.

All three branches have to deal with the real world, and the Constitution is meant to be flexible. That does not mean that the Executive is allowed to act unilaterally for extended periods of time. Exigency ends, and even with it the Executive is still duty-bound to preserve the law of the land. To have it otherwise would be a path we don't want to go down.

I agree that debate and discussion are necessary, but that can't happen as long as everything remains classified and hidden behind state secrets.

It is imperative to maintain separation of powers. Granting the kind of Executive Branch overreach we have seen in the last 2 administrations is categorically dangerous to a free people. It is only a matter of time before a true megalomaniac obtains the Presidency. You'll want a kill switch on the drone program available to either the Speaker of the House, or the Chief Justice of SCOTUS (preferably both) otherwise with an all pervasive intelligence apparatus and Hellfire missiles it would be a very short operation to obtain absolute dictatorial powers.

It is imperative to maintain separation of powers. Granting the kind of Executive Branch overreach we have seen in the last 2 administrations is categorically dangerous to a free people. It is only a matter of time before a true megalomaniac obtains the Presidency. You'll want a kill switch on the drone program available to either the Speaker of the House, or the Chief Justice of SCOTUS (preferably both) otherwise with an all pervasive intelligence apparatus and Hellfire missiles it would be a very short operation to obtain absolute dictatorial powers.

Hear, hear! And if I could've upvoted you twice, I would. I'm deeply saddened to think all three branches are complicit in this mess.

While I don't have any problems with what you're saying the mere fact that isn't the ONLY credible interpretation and that the Executive has to actually deal with the real world and how it actually works and not with the hypothetical logical world-construct of the law and the Constitution means that the debate has to extend beyond what is simply Constitutional in a basic sense and on to definitions which actually work in the real world. That still leaves plenty to debate, and doesn't necessarily invalidate your points. We are just having a bit of a different level of discussion.

First it was the Germans and Japanese,. then it was the Commies, then it was the Russians, now it's the terrorists.

There's ALWAYS going to be some threat (real or imagined) to justify ignoring the bill of rights, taking shortcuts with legal proceedings and generally ignoring the legal requirements and limitations.

We need to stop being such p***sies and stand up for the principles America was founded on, after we kicked out the greatest empire of it's time. Terrorists ain't got nothing on the British empire at it's peak.

While I don't have any problems with what you're saying the mere fact that isn't the ONLY credible interpretation and that the Executive has to actually deal with the real world and how it actually works and not with the hypothetical logical world-construct of the law and the Constitution means that the debate has to extend beyond what is simply Constitutional in a basic sense and on to definitions which actually work in the real world. That still leaves plenty to debate, and doesn't necessarily invalidate your points. We are just having a bit of a different level of discussion.

First it was the Germans and Japanese,. then it was the Commies, then it was the Russians, now it's the terrorists.

There's ALWAYS going to be some threat (real or imagined) to justify ignoring the bill of rights, taking shortcuts with legal proceedings and generally ignoring the legal requirements and limitations.

We need to stop being such p***sies and stand up for the principles America was founded on, after we kicked out the greatest empire of it's time. Terrorists ain't got nothing on the British empire at it's peak.

Secret courts and secret opinions are the enemy of democracy and due process.

How is anyone to defend themselves against a charge based on secret information collected under a secret program with a secret warrant, rubber stamped by a secret court? And you can't see any of that due to "national security" and because they are "secret".

How can anyone know how to not run afoul of the law if they charge you based on secret laws, with secret interpretations and secret opinions by the secret court?

Secret courts and secret opinions are the enemy of democracy and due process.

How is anyone to defend themselves against a charge based on secret information collected under a secret program with a secret warrant, rubber stamped by a secret court? And you can't see any of that due to "national security" and because they are "secret".

How can anyone know how to not run afoul of the law if they charge you based on secret laws, with secret interpretations and secret opinions by the secret court?

No charges are being made based on secret laws. All those who are involved with this law do know about it, so that really isn't the issue.

I am not sure what kind of privacy can realistically be achieved. I sure don't want to be ticketed by a drone. I am OK with the NSA doing whatever it wants as long as it only actually acts on terrorism and national security / defense related matters. No data should leave it unless its for acting on actionable intel.

In a perfect world, that worldview works, but unfortunately for you, definitions of "terrorism" and "national security" can change anytime. Scope creep is also bound to happen sooner or later.

bit fucking late now, it's only been going like this for over 40years! had it not been for Snowden, the man so many want locked up under equally as ridiculous laws for even more ridiculous charges, having the balls to let out what was going on, it would have carried on and no one in or out of the senate, the government, would have given a shit! now the world knows what the US government is up to, the various 'officials' are crawling out the woodwork and trying to make a name for themselves by condemning what they already knew was happening, but had turned a blind eye to! all the finger pointing that has been done at other countries, like China, for example, needs to be re-thought because the US is doing exactly the same if not more, than any other country!! nothing but complete hypocrites! the world deserves to be a better place. all this spying shit isn't helping at all. there are enough major problems to be dealt with that if solutions aren't found, we as a planet are gonna be in serious trouble!! the first one that needs addressing is the greed of certain people and the pressure they exert on those that have the power and position to allow them to continue amassing rather than being told 'enough is enough!'

How can anyone know how to not run afoul of the law if they charge you based on secret laws, with secret interpretations and secret opinions by the secret court?

No charges are being made based on secret laws. All those who are involved with this law do know about it, so that really isn't the issue.

If the laws are secret, and they want the process to remain a secret, how do we know there aren't any charges being made on the basis of these laws- even trials -already? Are you taking the NSA chief's word on it?

There can be no such thing as secret court opinions in the American democratic system. They aren't legal, no matter what the current crop of judges and politicians are telling us. It defeats the checks and balances between the three branches.

It actually only defeats your curiosity.

There are cleared members of the Legislative and Executive branches who can and do have access to these documents.

If the checks and balances have decayed, it is not due to their absence, merely their indifference.

I'm going to say this at the risk of inciting a reddit-style downvote surge, but can we please attempt to not lay this whole mess at Obama's feet? Obama didn't come up with the idea for a secret court. The FISA court was created as part of the Foreign Intelligence Surveillance Act of 1978. Also, Since 2008, the government has at least had the decency to go through this court and brief congress to obtain the latitude for its dubious surveillance programs. The previous administration couldn't be bothered with the red tape.